IMPORTANT POINT
The prosecution must provide clear and representative evidence that all recovered narcotic substances contain the narcotic in question to establish possession beyond reasonable doubt.

JUDGMENT :

Ravindra Maithani, J.

Applicant is in judicial custody in Case Crime No. 17 of 2022, under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station Tharali, District Chamoli. He has sought his release on bail.

2. Heard learned counsel for the parties and perused the record.

3. Delay Condonation Application Nos.2 of 2024 is allowed. Delay in filing the supplementary counter affidavit is condoned. Supplementary counter affidavit is taken on record.

4. This second bail application of the applicant. The first bail application was dismissed in want of prosecution on 13.01.2023.

5. According to the FIR, on 16.04.2022, 1.025 Kg. charas was allegedly recovered from the possession of the applicant.

6. Learned counsel for the applicant would submit that allegedly recovered charas was in the strips, out which, 50 gram sample was allegedly taken, but it is not clear as to whether sample was taken from each strip or it was taken randomly. Therefore, it is argued that it cannot be said that entire recovered article had charas in it. In support of his contention, learned counsel has placed reliance on the principles of law, as laid down by the Hon’ble Supreme Court, in the case of Gaunter Edwin Kircher Vs. State of Goa, Secretariat Panaji, Goa.

7. In the case of Gaunter Edwin Kircher (supra), the Hon’ble Supreme Court observed that “before examining the scope of this provision, we shall first consider whether the prosecution has established beyond all reasonable doubt that the accused had in his possession two pieces of Charas weighing 7 gms and 5 gms respectively. As already mentioned only one piece was sent for chemical analysis and PW 1, the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms. From this report alone it cannot be presumed or inferred that the substance in the other piece weighing 7 gms also contained Charas. It has to be borne in mind that the Act applies to certain narcotic drugs and psychotropic substances and not to all other kinds of intoxicating substances. In any event in the absence of positive proof that both the pieces recovered from the accused contained Charas only, it is not safe to hold that 12 gms of Charas were recovered from the accused. In view of the evidence of PW 1 it must be held that the prosecution has proved positively that Charas weighing about 4.570 gms was recovered from the accused.”

8. Learned State counsel would submit that the order taking sample does not specify that the representative sample was taken from each strip. He would submit that it simply says that 50 grams samples were taken.

9. Since, only 50 grams of sample was taken and in view of the law, as laid down by the Hon’ble Supreme Court, it cannot be said that each sample is the representative sample of the allegedly recovered quantity of the applicant. Therefore, it makes out a case for bail.

10. Having considered the entirety of facts, this Court is of the view that the applicant deserves to be enlarged on bail.

11. The bail application is allowed.

12. Let the applicant be released on bail, on his executing a personal bond and furnishing two reliable sureties, each of the like amount, to the satisfaction of the Court concerned.